Many commentators (not mention one DJT) seem to be asserting that the very act of showing up at the border and asking for asylum is a violation of US law and therefore not only justifies, but even requires, that any minors be removed from the parents. Is there any basis in law for this.
I have put this in GQ because I want a simple answer to a simple question, not a discussion of the wisdom of the policy.
The problem is not the showing up at the border and asking for asylum; it’s the crossing of the border without prior authorization.
Show up on the non-US side of a designated US border crossing and request asylum, and you’ll either be admitted or turned away without incident. Surreptitiously cross the Rio Grande into rural Texas, get picked up by ICE, and it’s a problem, regardless of whether you ask for asylum at this point or not.
The simple answer to your simple question is no. The issue is a bit muddled (for me, IANAL) and may require an immigration lawyer to properly answer here. Specifics from USCIS. Here are the specific steps to apply. The reason it’s muddled it that it is not illegal to show up at the border and seek asylum, but it is also possible to have already entered the U.S. and then apply for asylum, even if you did not enter legally. So the issue of seeking asylum is a bit muddled with how you crossed the border.
The site states, “Affirmative asylum applicants are rarely detained by U.S. Immigration and Customs Enforcement (ICE).” This is informational, not a policy statement, and policy can be set by the administration.
Nitpicking technicality… you apply for refugee status while still in another country. You apply for asylum status while at a port of entry or while already in the US. Neither require separating the applicant from accompanying children, though an inquiry can certainly be made as to whether the child is, in fact, the child of the applicant.
US law is in line with UN conventions on refugees and asylum seekers and specifically allows for asylum applications from those who entered illegally or overstayed a visa. Such applications must be based on a well founded fear of persecution based upon membership in a protected category. Migration seeking a better economic opportunity does not qualify.
Of course, if you in any way lied to get into the US legally (i.e. on a visa application or travel authorization, or using false papers) and then proceeded to request asylum, that in itself is a crime.
Plus, is Mexico considered a safe third country? If you arrive at the border and request asylum but are arriving form a safe third country (not directly from the one where you are in danger) you can be turned back. Asylum seekers cannot pick and choose where they proceed to. They apply where they first land in a safe place. Thi is why its better for those with debatable (?) claims to already be on US soil, not at the entry point. Then they cannot be turned back. Of course, they have committed illegal entry.
This is specifically why some people sneak into Canada from the USA, or into the USA from Mexico,* then *seek asylum. Once they are past the border entry points, inside the country, they cannot be tossed out (first, why would the USA accept them back from Canada once they are outside the USA? Why would Mexico accept non-Mexicans?)
I guess there’s a crime in making a false claim of asylum at a border crossing, since it implies you lied to the border guards. That would depend on how the claimant (mis)represented their situation…
Next, Canada probably is not obliged to accept a refugee who is already granted asylum in the USA. Not sure what the situation is if they are in the process of applying in the USA, but I assume it’s basically that since they are already in process then they have no claim with Canada unless their US request is denied. I assume the same for the southern US border, possibly the migrants have not even tried to apply for asylum in Mexico first. If the USA considers Mexico a “safe” country - one that the asylum seekers could safely live in - then they would be turned back at the border; hence the incentive to sneak in.
Those who fly in from elsewhere would need assorted documentation to even board a flight; AFAIK Canada and the USA have a list of countries that are safe as in “don’t even bother applying for asylum if you come from X”. Anyone from a more questionable country almost always needs a visa to board the plane. Lying about this or faking a US visa I assume would be a crime, as would also be faking a passport. Not sure how in-depth the passport check is at airline check-ins. IIRC there were cases a decade or two ago where asylum seekers deliberately destroyed their documents (Shredded into the airline toilet?) on the theory that without documents they could not easily be send home, since many other countries also don’t accept people unless it can be documented that they belong there. This would have the added bonus of destroying any evidence of fraudulent papers and avoiding charges if the passport etc. were fake. Not sure if attempting to enter *without *papers is a crime. (Usually they just get sent back…)
The scale is obviously different, but Canada appears to detain about 11,000 immigrants each year, in facilities that the CBC has described as resembling medium-security prisons. According to the linked sources, the number of children detained has ranged from a high of 807 down to about 150 last year, and this year the number may be back up a bit. All but a handful of those children are detained with their parents, however, and Canadian border-authority parlance refers to them as “guests.” As of 2016, toddler Alpha Anawa had lived his entire life in a Canadian immigration detention facility. I haven’t been able to find anything more recent as to whether he is still there.
Not so.The UN has, in fact, recognized that those fleeing the Northern Triangle may indeed meet the criteria for political asylum because they are members of a particular social group, i.e.,
The UNHRC recognizes that children and women who are targeted by gangs, meet the “innate” criterion.Past refusal to join gangs meets the “unchangeable” criterion, the UNHRC says, because the reprisals don’t diminish over time. Those who fear or have experienced gang violence due to occupation or economic status also meet the criteria.
That matches the cases I mentioned earlier - failure by the state to provide protection to a recognisable group can found an asylum claim. Makes sense that the US would reach the same result, since Canada and the US are both signatories to the UN convention.